Sun-Sentinel Co. v. U.S. Dept. of Homeland Sec.

• Decision Date: 14 April 2006
• Docket Number: No. 05-60340-CIV.,05-60340-CIV.
• Citation: 431 F.Supp.2d 1258
• Parties: SUN-SENTINEL COMPANY, a publisher of the South Florida Sun-Sentinel, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, and its component Federal Emergency Management Agency, Defendants.
• Court: U.S. District Court — Southern District of Florida

431 F.Supp.2d 1258

SUN-SENTINEL COMPANY, a publisher of the South Florida Sun-Sentinel, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, and its component Federal Emergency Management Agency, Defendants.

No. 05-60340-CIV.

United States District Court, S.D. Florida.

April 14, 2006.

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David Steven Bralow, Tribune, Orlando, FL, Rachel Elise Fugate, Deanna Kendall Shullman, Thomas & LoCicero PL, Tampa, FL, for Sun-Sentinel Company, publisher of the South Florida Sun-Sentinel, Plaintiff.

Steven R. Petri, United States Attorney's Office, Fort Lauderdale, FL, for U.S. Department of Homeland Security, Federal Emergency Management Agency, Defendants.

OPINION AND ORDER

MARRA, District Judge.

This cause is before the Court upon the parties' cross motions for summary judgment [DE 31 and DE 39]. The Court heard oral argument on December 7, 2005. The Court has carefully considered the motions and the arguments of counsel and is otherwise fully advised in the premises.

I. Background

The facts, as culled from affidavits, depositions, declarations, exhibits and reasonably inferred therefrom, for the purposes of these Summary Judgment Motions, are as follows:

The Federal Emergency Management Agency ("FEMA") is an agency of the United States Government that is responsible for, among other things, administering and coordinating the federal governmental response to Presidentially-declared disasters pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"). See 42 U.S.C. § 5121 — et seq.; see also Executive Order No. 12148 of July 20, 1979 and 44 Fed.Reg. 43239. In particular, FEMA provides "federal assistance programs for public and private losses and needs sustained in disasters." 44 C.F.R. § 206.3(a) (2001).

In 2004, Florida was struck by four hurricanes in a single season. See Press Release, Federal Emergency Management Agency, Florida's Disaster Recovery Operation — By the Numbers (June 15, 2005), attached to Sally Kestin Declaration ("Kestin Decl.") at Tab 1, p. FOIA00006. During the course of recovery from these hurricanes, FEMA opened over 150 Disaster Recovery Centers throughout Florida to provide Stafford Act assistance to approximately 600,000 disaster assistance applicants with damages and losses from these hurricanes. See FEMA news release no. 1539-443 at Exhibit A, attached to Defendant's Motion for Summary Judgment. As of August 12, 2005, FEMA had disbursed more than $5.6 billion under FEMA's Individual and Public Assistance Program. See Press Release, Federal Emergency Management Agency, Florida 2004 Hurricane Recovery Passes $5.6 Billion Mark (August 12, 2005), attached to Kestin Decl. at Tab 1, pp. FOIA00542-FOIA00543. Of that amount, nearly $1.2 billion has been disbursed in individual assistance in response to applications from more than 1.2 million applicants. See Press Release, Federal Emergency Management Agency, FE MA and Florida Committed to Long-Term Recovery (June 24, 2005), attached to Kestin Decl. at Tab 1, p. FOIA0001; Press Release, Federal Emergency Management Agency, Florida's Disaster Recovery Operation — By the Numbers (June 15, 2005), attached to Kestin Decl. at Tab 1, p. FOIA00006.

FEMA disbursed more than $31 million in individual assistance to Miami-Dade County, where the National Weather Service reported that the strongest sustained winds during Hurricane Frances were tropical storm strength, where the highest recorded accumulation of rainfall was 3.77 inches, and where there was no reported flooding. See Press Release, Federal Emergency" Management Agency, FEMA and Florida Committed to Long-Term Recovery (June 24, 2005), attached to Kestin Decl. at Tab 1, p. FOIA00004; Office of Audits, Audit of FEMA's Individuals and Households Program in Miami-Dade County, Florida, for Hurricane Francis, 01G-05-20 (May 2005), attached to Kestin Decl. at Tab 2, p. FOIA00081. Over a dozen individuals were indicted by the United States Attorney's Office for making false claims of assistance in connection with Hurricane Frances. See Press Release, U.S. Department of Justice, Fourteen Defendants in Miami-Dade County Indicted on Charges of Defrauding FEMA after Hurricane Frances (March 2, 2005), attached to Kestin Decl. at Tab 5.

The Department of Homeland Security Office of Inspector General conducted an Audit of FEMA's Individual Assistance Program in Miami-Dade County for Hurricane Frances. See Office of Audits, Audit of FEMA's Individuals and Households Program in Miami-Dade County, Florida, for Hurricane Frances, 01G-05-20 (May 2005), attached to Kestin Decl. at Tab 2, pp. FOIA00070-FOIA00132. The Inspector General's Audit found that: (1) FEMA designated Miami-Dade County eligible for individual assistance without a proper preliminary damage assessment; (2) claims were not properly verified; (3) guidelines for making awards were generally lacking; (4) oversight of inspections was deficient and (5) funds disbursed in Miami-Dade County were not based on actual losses. Id. at pp. FOIA00075, FOIA00079, FOIA00083. Additionally, the Inspector General's Audit found that FEMA's inspectors were poorly trained and lacked oversight. Kestin Decl. at ¶ 14, Tab 2, p. FOIA00101-02. That investigation, however, only examined three percent of the nearly $31 million awarded to Miami-Dade County residents. See Office of Audits, Audit of FEMA's Individuals and Households Program in Miami-Dade County, Florida, for Hurricane Frances, 01G-05-20 (May 2005), attached to Kestin Decl. at Tab 2, pp. FOIA00078.

Additionally, in January 2005, the United States Senate Committee on Governmental Affairs launched an investigation into "allegations of fraud and waste in the distribution of disaster aid by [FEMA]." See Press Release, Senator Joe Lieberman, Senators Collins & Lieberman Initiated Investigation Into Possible Fraud Involving FEMA Dollars (January 6, 2005), attached to Kestin Decl. at Tab 4, p.FOIA00211. The Committee expressed "deep concern" about the awarding of FEMA aid. See Press Release, Senator Joe Lieberman, Senator Collins and Lieberman Release Findings and Recommendations to Improve Safeguards in FEMA's Disaster Relief Program (July 10, 2005), attached to Kestin Decl. at Tab 4, p.F0IA00203. The Committee also discovered that, in some instances, FEMA inspectors filled out forms without ever showing up at the houses to inspect the purportedly damaged property. See DE 34, Transcript from Tape, Hearing File D HS-IG-Report 051805, Exhibit A, p.F0IA00438. Furthermore, as many as twenty-two percent of FEMA inspectors processing individual assistance claims in Florida had criminal records. See id. at FOIA00374. In sum, the Committee recommended improvements in nineteen areas that would be "necessary to ensure fairness, accountability, and transparency" in the administration of FEMA's Individual Assistance Program. See Press Release, Senator Joe Lieberman, Senator Collins and Lieberman Release Findings and Recommendations to Improve Safeguards in FEMA's Disaster Relief Program (July 10, 2005), attached to Kestin Decl. at Tab 4, p.F0IA00204-FOIA00206.

By letter dated September 28, 2004, the Sun-Sentinel, pursuant to the Federal Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, requested a copy in electronic format of FEMA's National Emergency Management Information System ("NEMIS"), a database used to track FEMA assistance requests and awards associated with Hurricanes Charley, Frances, Ivan and Jeanne. See Exhibit 1 attached to the Amended Complaint. In response, FEMA provided the Sun-Sentinel with 9,000 pages of eligibility and inspection spreadsheets, which provided a breakdown by zip codes of individual assistance applications and payouts for Hurricane Frances for Miami-Dade County from September 4, 2004 through October 18, 2004.¹ See Exhibit 3 attached to Amended Complaint. FEMA withheld the names and addresses of individual aid claimants and the addresses of damaged properties. FEMA asserted FOIA Exemption 6, 5 U.S.C. § 552(b)(6) and the Privacy Act regulations, 6 C.F.R. § 521(f) as the bases for withholding that information. See DE 23, Defendant's Notice of Filing of Vaughn Indexes at ¶ 4; Exhibit A to Defendant's Notice of Filing of Vaughn Indexes at 2-6.

By letter dated October 18, 2004, the Sun-Sentinel requested, among other things, the names of inspectors who conducted inspections in Miami-Dade County, certain e-mails to or from Michael Brown, the former Under Secretary of FEMA, and audits, inspector general reviews and quality control reviews of the FEMA Individual Assistance Programs. See Exhibit 10 attached to the Amended Complaint. On January 6, 2005, FEMA provided the Sun-Sentinel with the names of the companies providing inspectors for Miami-Dade County. See Exhibit 11 attached to Amended Complaint. FEMA informed the Sun-Sentinel that it did not maintain records of the names of individual inspectors. See id. Moreover, FEMA withheld the inspectors' identification numbers under FOIA Exemptions 4 and 6. See id. Additionally, FEMA asserted that five emails were redacted and twenty pages of e-mails were withheld pursuant to FOIA Exemption 5.² See id.

By letter dated January 19, 2005, the Sun-Sentinel made a request, pursuant to FOIA, for the same information from the NEMIS database but expanded the new request to include several additional disasters. See Exhibit 5 attached to the Amended Complaint. In response to this request, FEMA provided the Sun-Sentinel with 620,930 kilobytes of individual assistance data queried for the NEMIS system for the twenty-seven requested disasters.³ That response included inspection information on each particular individual claimant which included: category of assistance, assistance status and type, eligibility date, eligible amount, ownership status, water level, cause of damage, insurance status for each item, description of each...